Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry P. Fidler, Judge, Los Angeles County Super. Ct. No. BA293563
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph R. Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Jason Robert Walton was convicted by jury of the first degree murder of William Cox (Pen. Code, § 187, subd. (a)) and the attempted willful, deliberate, premeditated murder of Edward Williams (§§ 664/187, subd. (a)). The jury also found defendant personally and intentionally discharged a firearm, and his discharge of the firearm proximately caused death and/or great bodily injury. (§ 12022.5.53, subds. (c)-(d).) Defendant was sentenced to a total of 50 years to life in state prison.
All statutory references are to the Penal Code, unless otherwise indicated.
In this timely appeal, defendant argues as follows: (1) the prosecutor improperly injected racial animus into the trial, and the trial court’s failure to remedy the misconduct violated defendant’s constitutional rights; (2) the evidence is insufficient to establish the element of premeditation as to the murder and attempted murder convictions; (3) the Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM Nos. 521 and 601, do not properly differentiate between the element of intent to kill and premeditation; (4) the trial court erred in instructing the jury on suppression or fabrication of evidence pursuant to CALCRIM No. 371; (5) denial of access to juror contact information prejudiced defendant’s ability to investigate potential grounds for a new trial; (6) denial of the motion for new trial was error, because the verdict was contrary to the weight of the evidence; and (7) the cumulative effect of the errors violated defendant’s right to due process under the state and federal constitutions.
FACTS
A few weeks before November 13, 2005, 14-year-old Williams was visiting his friend, William Cox. When Williams left to go home, he saw a girl named Amber Jones with whom he was friendly. He waved at her as he walked by. Defendant was present and glowered at Williams. Defendant asked Williams why he was looking at his girl. Jones told defendant that Williams was a friend of the family. Williams continued to walk home. He heard the sound of a car burning rubber and turned to see defendant getting out of the car, with Jones in the passenger seat. He walked up to Williams and asked where he was from, a reference to gang membership. Williams said nowhere. Williams was scared and thought defendant would hit him if he said the wrong thing. Defendant made other gang-related references (“fuck naps” and “neighborhood killer”) and referred to which gangs did not get along with his gang. Defendant said he was from a specific gang, and Williams said he had family from another gang that got along with defendant’s gang.
Defendant walked back to the car and reached into an area under the driver’s seat. Williams stood there with his fists balled up. Jones yelled several times, “No, baby, no.” Defendant again got in his face, as Williams stood with his fists clenched. Eventually defendant walked back to his car and drove away.
On November 13, 2005, Williams went to Cox’s house. They went to the store and then to a carnival. Williams and Cox ended up talking to some girls. Williams saw about eight people, including defendant, giving them mean looks. Defendant walked up and hugged one of the girls as if he knew her, and then he got into Williams’s face. Cox suggested that they run, but Williams thought they would be caught or shot in the back. Defendant had his hands inside his jacket. Williams heard a boom and Cox went down. Cox was fatally wounded by two shots to the torso, one entering the left pulmonary artery and a second entering the left chest cavity, where it perforated the lung and came to rest in the musculature of the back.
Williams saw a flash and ran, as defendant fired a gun from inside his jacket. Williams felt nauseous and fell to the ground. He was shot twice in the heart and in the lung and back. Williams was 100 percent sure he was shot by defendant.
Williams spent one week in the hospital.
Richard Gray was working at a ride near the carnival entrance. He heard shooting and saw the back of defendant, who was running with a security guard in pursuit. Gray saw the side of defendant as he ran by, although he told the police he only saw the man from the back. Gray later saw a six-pack photo display and circled defendant’s photograph, indicating his identification of defendant as the “guy who did the shooting of the two boys.” By the time of trial, Gray was not sure if defendant was the person he saw running. Gray was first shown the six-pack at the carnival, six days after the shooting. He immediately identified defendant’s photograph. After the initial identification, Gray was taken to the Southwest Station, where he circled a photograph marked number 4 after receiving an admonition.
Christian Monroe, defendant’s seven-year-old nephew, was present when defendant was arrested three days after the shooting. In a tape-recorded statement, Christian told the police he had previously seen defendant with a gun. Defendant kept his gun in the car, or else he puts it in a case or in his pocket. When no one is in the house, defendant puts the gun in a hiding place. Christian saw the gun on three occasions under the driver’s seat of defendant’s car.
One day after defendant’s arrest, Christian spoke to defendant on the phone. Defendant asked what Christian had told the police, expressing his anger and threatening to whip him. Defendant also spoke with Christian’s brother, eight-year-old Antwoine. Christian told defendant what he had told the police. Defendant was mad because Christian had mentioned that he saw the gun. Defendant threatened to hit him.
Defense
Defendant presented an alibi defense, seeking to establish that he was at Roscoe’s House of Chicken and Waffles (Roscoe’s) at 5006 West Pico Boulevard at the time of the shooting. David Daviston, a manager at Roscoe’s, was responsible each day for putting a videotape into a console to record from security cameras that capture the outside of the establishment, including the parking lot. He gave the videotape from November 13 to Jones, defendant’s girlfriend. The tape showed defendant in the parking lot in Jones’s car at several times, including 6:45 p.m. Defendant went out of the picture at 6:58 p.m., but Jones’s car remained. The tape automatically depicts the time. Daviston believed the time on the tape was accurate, although the person who installed the system and services it believed it could be off by three to five minutes.
Ronaldo “Shorty” Dervin knew defendant for four years from Roscoe’s, where Dervin works selling body oils and incense. He saw defendant at Roscoe’s on November 13 in Jones’s car. At 6:51 p.m., the videotape showed defendant by a white car. Defendant was still at Roscoe’s when Dervin left at 8:00 p.m.
Nikko Deloney testified that he is a certified youth gang intervention prevention specialist working for the American Program for Social Change. He is a former gang member. He is familiar with Roscoe’s and has known defendant his entire life. He was at Roscoe’s on November 13, where he frequently goes to keep the peace. He identified defendant from the videotape as driving Jones’s car. Deloney saw defendant on the videotape at 6:56 and 7:31 p.m.
Jones is defendant’s ex-girlfriend. She has known Williams for five to seven years. A few weeks before November 13, Jones and defendant were at Jones’s mother’s house. Williams walked down the street and said, “What the fuck is this nigger looking at?” Jones directed defendant to drive after Williams. He did so, and Jones asked what made Williams say that and what was wrong with him. Defendant got out of the car to talk to Williams. Defendant told Williams not to walk down the street throwing gang signs and “banging.” Jones told Williams to go home. The incident was no big deal.
Defendant drove her to work at 3:00 p.m. on November 13 and picked her up at 9:30 p.m. Jones learned on November 17 that defendant had been arrested. Jones gave the police three different versions of the first confrontation between defendant and Williams. First, she said Williams gave her boyfriend a bad look, but defendant never got out of her car to approach Williams. Second, she said the two exchanged words. Finally, Jones said defendant did exit the car and had a verbal confrontation with Williams, who she thought appeared to be nervous, but he stood his ground.
Jones learned defendant was at Roscoe’s on the evening of November 13. She saw Daviston and asked to look at the tape, which showed defendant and her car. Jones took the tape to an attorney and eventually gave it to trial counsel.
Jones spoke with defendant over the telephone while defendant was in jail awaiting trial. She visited with him at the jail wearing a jacket that defendant said had a bullet hole, although she thought the hole was not from a bullet.
It was stipulated that a 9-1-1 call came in on November 13, 2005, at 7:01 p.m. reporting the murder.
DISCUSSION
I
THE PROSECUTOR DID NOT MAKE RACIAL ANIMUS AN ISSUE AT TRIAL
Defendant contends the prosecutor improperly injected the issue of racial animus into the trial during his cross-examination of Dervin. Defendant further argues the trial court compounded the error by precluding defense argument to the jury about the prosecutor’s injection of this improper consideration. We conclude the prosecutor did not improperly raise an issue of racial animus, and the trial court reasonably precluded argument on this irrelevant consideration.
Background
During the defense presentation of evidence, Dervin testified on cross-examination that he had given a statement to the prosecutor, who had come to his house. Dervin claimed the only “detective” he had been interviewed by was the prosecutor. When pressed on cross-examination to explain his answer, Dervin testified it might have been someone who looked like the prosecutor, because, “You know, you all look the same.” Dervin further testified that, “We human beings, you know, we all tend to look the same,” and “[w]e all have, like, you know, similar features that look the same.” As the prosecutor continued to probe, Dervin testified that if it was not the prosecutor who went to his house, it was someone that looked like him, but, “If it wasn’t you, it was this young lady right here. I remember she’s come to my house,” referring to the female investigating officer. In response to further questioning, Dervin testified that two officers came to his house and one looked just like the prosecutor, who was, “A little Asian guy.” Dervin then suggested that if it had not been the prosecutor at his home, it was “one of your workers that look like you.” Dervin testified to his belief that all Asians look alike. “I think they all look the same, just like all Black people look the same, I think so, yeah.” Although the people shown on the videotape looked alike, Dervin could tell them apart because of the differences in their clothes.
The Cross-Examination Was Proper
The cross-examination of Dervin was proper. Dervin was called as a witness to establish that defendant was depicted on the security tape of the parking lot of Roscoe’s during the evening of the murder. Whether defendant was depicted on the tape was a hotly contested issue at trial, and matters going to Dervin’s credibility were relevant and admissible. Dervin’s ability to make an identification from the tape was a disputed issue, and his confusion of the prosecutor with an Asian detective reasonably tended to refute Dervin’s professed ability to make an identification. (Evid. Code, § 780, subd. (c) [a witness’s credibility may be based on the “capacity to perceive, to recollect, or to communicate any matter about which he testifies”]; Evid. Code, § 780, subd. (i) [the “existence or nonexistence of a fact testified to by” the witness is relevant to credibility].) Moreover, Dervin’s flip response to the prosecutor indicating that all Asians look alike—which led the trial court to fairly characterize Dervin as a “smart ass” and a “jerk”—reflected on Dervin’s attitude toward the trial. (Evid. Code, § 780, subd. (j) [credibility assessment includes the witness’s “attitude toward the action in which he testifies”].)
The trial court instructed pursuant to CALCRIM No. 226 that the jury was the judge of the believability of witnesses. The factors the trial court directed the jury to consider included how well the witness could perceive things about which the witness testified, the witness’s ability to remember and describe events, the witness’s behavior while testifying, the attitude of the witness about the case, and the reasonableness of the testimony. Dervin’s error as to the prosecutor’s presence at his home during questioning and his cavalier attitude toward the subject were clearly proper areas of inquiry of Dervin’s credibility.
Defense Argument on Racial Animus Was Properly Excluded
After Dervin testified, but before argument to the jury, defense counsel accused the prosecutor of injecting race into the case to “obviously set this up as an Asian versus African American confrontation.” Defense counsel observed that defendant is African American and there were no African Americans on the jury panel, although there was one African American alternate juror. Defense counsel asked for permission to argue to the jury that the prosecutor had attempted to turn the trial into a case pitting Asians against African Americans. In response, the prosecutor argued that Dervin’s testimony on cross-examination went to his ability to identify who was on the tape at Roscoe’s, and his questioning of Dervin had nothing to do with driving a wedge between Asians and African Americans.
The trial court agreed with the prosecutor, ruling that defense counsel would not be permitted to argue the impact of racial animus, based upon the record presented. The trial court described Dervin as “a complete smart ass. Mr. Dervin was a jerk,” whose demeanor and credibility were proper considerations for the jury. The trial court expressly found the prosecutor’s cross-examination of Dervin was not intended to curry favor with Asian jurors.
We hold that the trial court did not abuse its discretion in limiting the scope of permissible argument to the jury. From the outset of trial, the trial court took care to focus the jury’s attention on the merits of the case. The trial court forcefully directed the jury during voir dire to reach its verdict on the evidence, not race. The trial court explained, “if you look over, [you will see] that the defendant is African-American. If you have a race problem, that’s your problem to a degree, but I need to know about it. You can’t hide it. You can’t not tell me. It’s very simple. This case is not going to be decided on race. It is going to be decided on the law and evidence. Everybody is entitled to a fair trial. If you have a problem because the defendant is Black, you come to the bench, you tell me, it’s that simple. This case will be decided on the way it’s supposed to be decided, not on issues of race.”
The trial court reasonably rejected defendant’s request to argue to the jury that the prosecutor pursued the issue of race with Dervin in an improper attempt to curry favor with Asian jurors. The trial court’s ruling kept the jury’s focus on where it belonged—on the merits of the case. It was Dervin, not the prosecutor, who offered the opinion that all Asians look alike. We have already determined that the prosecutor’s cross-examination of Dervin was proper as to a witness presented for the purpose of making an identification. The prosecutor never made the improper argument that Dervin’s testimony should be rejected due to the witness’s bias against Asians, nor did the prosecutor argue that defendant, an African American, should be convicted based upon race or ethnicity.
Among the authority cited by defendant in support of his argument is the following quote from People v. Rideaux (1964) 61 Cal.2d 537, 540: “Had the district attorney implied that Negroes commit more crimes in general and that the Jamaican Switch is invariably perpetrated by a Negro, thereby inferring that defendant must be guilty because he, too, is Negro, unquestionably there would have been misconduct [citations], particularly if the inference was made before a predominately white jury [citation].” The quoted language from Rideaux obviously bears no relationship to what happened in defendant’s trial. The prosecutor never argued that a witness should be believed or disbelieved based upon race, nor did he suggest defendant be convicted based upon race. The trial court properly limited the focus of argument to the facts surrounding the charged crimes. There was no error in precluding argument on an entirely irrelevant consideration.
II
THE EVIDENCE SUPPORTS THE JURY’S FINDINGS THAT THE MURDER AND ATTEMPTED MURDER WERE PREMEDITATED
Defendant contends there is insufficient evidence of premeditation to support the jury’s verdict of first degree murder and attempted murder. Defendant is incorrect.
“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Wader (1993) 5 Cal.4th 610, 640.) We apply this standard in determining the sufficiency of the evidence to establish premeditation and deliberation as elements of first degree murder. (People v. Perez (1992) 2 Cal.4th 1117, 1124-1125.) Evidence concerning motive, planning, and the manner of killing are pertinent to the determination of premeditation and deliberation, but these factors are not exclusive nor are they invariably determinative. (Id. at pp. 1125-1126.)” (People v. Silva (2001) 25 Cal.4th 345, 368; see also People v. Bolin (1998) 18 Cal.4th 297, 331-332.)
The evidence, viewed in the light most favorable to the judgment, provides the necessary substantial evidence of premeditation to support defendant’s conviction of first degree murder. Defendant’s motive to kill Williams was established by the confrontation between defendant and Williams a few weeks before the charged offense. In that confrontation, defendant drove after Williams, confronted him, made references to his gang, and had to be dissuaded by Jones from getting a gun from his car. The ill will between defendant and Williams, demonstrated by this incident, provided a motive for defendant to seek to inflict harm on Williams.
A reasonable inference of planning can be drawn from the evidence. Williams was with Cox at the carnival on the night of the murder. Defendant, accompanied by other gang members and armed with the murder weapon, approached the victims. Defendant confronted Williams before the shooting. He shot with the gun secreted in his jacket pocket, raising the inference that he sought out Williams with an intent take the victim by surprise. Viewed in the light most favorable to the judgment, the record supports the reasonable inference that defendant sought out Williams, confronted him, and carried out a plan of shooting as a means of resolving their earlier dispute. (See People v. Halvorsen (2007) 42 Cal.4th 379, 421-422.)
Finally, the manner of killing was consistent with a deliberate plan of execution. Defendant was armed with a firearm, which he kept secreted in his jacket. He fired the weapon while it was in the jacket pocket. His shots struck both Williams and Cox, indicating his deliberate intent to kill. Firing multiple shots without warning, followed by escape from the scene, is consistent with first degree murder. (People v. Bolin, supra, 18 Cal.4th at pp. 332-333.) Both victims were shot in the torso from relatively close range, a method of killing sufficiently particular and exacting to permit the inference of a preconceived design. (See People v. Halvorsen, supra, 42 Cal.4th at p. 422.)
Defendant’s challenge to the sufficiency of the evidence is without merit.
III
THE INSTRUCTIONS PROPERLY DEFINED FIRST DEGREE PREMEDITATED MURDER
Defendant argues that if the evidence is sufficient to support the jury’s finding of premeditation, the jury’s verdicts were based upon erroneous instructions and the premeditation findings must be reversed. Defendant specifically argues that the definition of premeditation in CALCRIM Nos. 521 and 601 (“[t]he defendant acted with premeditation if he decided to kill before committing the act that caused death”) is no different than the definition of intent to kill found in the same instructions. As defendant sees it, the instruction allows a jury to find premeditation based upon an unreasonably short period of time, which amounts to nothing more than a finding that a defendant had the intent to kill. According to defendant, the instruction cancels out the definition of deliberation and reflection because the jury was lead to believe that deliberation “can occur at any time before the killing, even instantaneously.”
“In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)
The jury was instructed pursuant to CALCRIM No. 521 as to murder (and similarly as to attempted murder in CALCRIM No. 601) as follows:
Because CALCRIM Nos. 521 and 601 are similar, we will refer to No. 521 for simplicity, but our comments apply with equal force to No. 601.
“If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation. The defendant acted willfully if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death.
“The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“All other murders are of the second degree.
“The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
Every individual component of CALCRIM Nos. 521 and 601 is a correct statement of law. Broken down into its elemental parts, we conclude that the challenged instructions do not diminish any of the elements of first degree murder.
First, the jury is advised in CALCRIM No. 521 that first degree murder requires a willful, deliberate, and premeditated murder. This advisement is in conformity with California statutory and case law. (See § 189 [“All murder which is perpetrated by . . . [a] willful, deliberate, and premeditated killing . . . is murder of the first degree”]; People v. Memro (1995)11 Cal.4th 786, 862 [“First degree murder may be found when the prosecution proves beyond a reasonable doubt that the actor killed with malice aforethought, intent to kill, premeditation, and deliberation. (§§ 187, 189.)”].)
Second, the jury is advised that a defendant acts willfully if he has an intent to kill. The California Supreme Court has equated willfulness with the intent to kill. (People v. Moon (2005) 37 Cal.4th 1, 29 [“A willful murder is an intentional murder, and malice is express when there is an intent to unlawfully kill a human being”]; People v. Lee (2003) 31 Cal.4th 613, 624.)
CALCRIM No. 521 defines a deliberate murder as one in which the defendant “carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill.” The importance of this definition is that it demonstrates that deliberation requires something more than an intentional killing. As stated by our Supreme Court: “By conjoining the words ‘willful, deliberate, and premeditated’ in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill.” (People v. Thomas (1945) 25 Cal.2d 880, 900.) The necessary reflection, beyond the intent to kill, is unambiguously required by CALCRIM No. 521.
The instruction also defines premeditation in a manner consistent with California law. Under the instruction, a defendant acts with premeditation if “(he/she) decided to kill before committing the act that caused death.” We note that the definition of premeditation in CALJIC No. 8.20 (“The word ‘premeditated’ means considered beforehand”) is essentially the same as that in CALCRIM. No. 521, and that the California Supreme Court has held that CALJIC No. 8.20 “correctly defined a deliberate and premeditated murder.” (People v. Lucero (1988) 44 Cal.3d 1006, 1021; see also People v. Goldbach (1972) 27 Cal.App.3d 563, 569.)
The balance of CALCRIM No. 521 is devoted to explaining that the relationship of time to the mental states of deliberation and premeditation. CALCRIM No. 521 informs the jury that the length of time alone does not determine the existence or premeditation, as the amount of time required may vary by person and according to circumstances. Rash, impulsive decisions made without careful consideration do not amount to deliberation and premeditation. The jury is told in CALCRIM No. 521 that a calculated decision to kill can be reached quickly, and the jury should consider the extent of reflection rather than the length of time.
Viewed as an integrated statement of the elements of first degree murder, CALCRIM No. 521 properly states the law. The definition of premeditation in CALCRIM No. 521 is indistinguishable from that in CALJIC No. 8.20, which was approved by the California Supreme Court in People v. Lucero, supra, 44 Cal.3d at page 1021. There was no instructional error.
IV
THE TRIAL COURT DID NOT ERR IN INSTRUCTING PURSUANT TO CALCRIM NO. 371 ON SUPPRESSION AND FABRICATION OF EVIDENCE
Defendant contends the trial court committed reversible error in instructing the jury pursuant to CALCRIM No. 371. According to defendant, the instruction is cautionary in that it prevents the jury from giving undue weight to “spoliation evidence,” and should only be given when it benefits the defense. Accordingly, a defendant is entitled to waive the benefit of the instruction, as defendant did in this case by objecting in the trial court. We conclude the instruction was neither error nor prejudicial.
CALCRIM No. 371, as given in this case, provides as follows: “If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
To the extent defendant argues CALCRIM No. 371 is only a cautionary instruction that benefits the defense, he is mistaken. The instruction, in fact, serves the dual purpose of explaining to the jury that a defendant’s conduct can evidence a consciousness of guilt, but that this type of evidence is not alone sufficient to support a guilty verdict. Instructions of this nature make “clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior.” (People v. Jackson (1996) 13 Cal.4th 1164, 1224.)
There was a clear evidentiary basis for giving CALCRIM No. 371 in this case. Defendant’s angry phone call to his nephews, who had talked to the police about defendant’s possession of a firearm before the murder and attempted murder, qualified as an attempt by defendant to hide evidence or discourage someone from testifying against him. There also was a factual basis for the instruction as to third party attempts to create false evidence or influence testimony, as the record clearly supports the inference someone suggested to defendant’s nephews that they conveniently forget what they told the police about defendant’s gun possession. Finally, a question existed as to whether the videotape of Roscoe’s parking lot on the night of the charged offenses had been altered. The jury was entitled to know how to assess this type of evidence, and CALCRIM No. 371 served that purpose. There was no instructional error.
V
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT’S REQUEST FOR JURY IDENTIFYING INFORMATION
Defendant argues the trial court erred in denying his motion to disclose the identity of the jurors, which would have been used to assist in making a motion for new trial. Defendant’s argument is based upon the claim that during trial, defendant’s cocounsel walked into a restroom during a break in the trial where she observed several jurors and the investigating officer laughing. When they saw cocounsel, the laughter immediately stopped. Based upon this incident, defendant required juror identifying information in order to support his motion for new trial.
Background
At the close of evidence, lead defense counsel reported to the trial court that he had observed the investigating officer speaking with a juror in the hallway. The detective admitted speaking to the juror, who had asked her why she came on the job. The trial court admonished the detective and agreed to question the juror about the conversation. The juror confirmed that she was interested in the detective personally, but they did not mention anything about this case. Her curiosity got the best of her, and she apologized. She did not tend to favor one side based on the conversation, and she had no question that she could fairly try the case. Defense counsel had no further comment on the juror, but expressed the opinion the situation was more the fault of the investigating officer.
Defendant was represented by two attorneys—lead counsel and cocounsel.
The jury returned its verdicts on August 14, 2006. Defendant filed a motion for new trial and petition for release of juror information pursuant to Code of Civil Procedure section 206, subdivision (g), on August 17, 2006. The motion was not supported by a declaration, nor did it contain a discussion of good cause for release of juror identifying information.
The trial court considered the petition on September 5, 2006. When the trial court asked for the basis of the request to release juror identifying information, cocounsel said she wanted to interview the jurors to find out what went on, in order to develop information to support a motion for new trial. Cocounsel expressed surprise that there would be opposition to the request. She said there had been improper contact between the investigating officer and jurors, and further that she wanted to investigate the jurors’ understanding of a stipulation. The trial court said that type of inquiry was not permitted. Cocounsel asked for permission to file a motion pursuant to Code of Civil Procedure section 237, to follow up on the petition under Code of Civil Procedure section 206. The trial court found no good cause for release of juror identifying information. Defendant does not challenge this ruling on appeal.
Defendant filed a motion for reconsideration of the petition for release of juror information, which was heard by the trial court on October 17, 2006. The motion was supported by affidavits of both defense counsel, alleging that cocounsel had gone into a restroom during a break in trial, where she saw the investigating officer and jurors laughing. As soon as cocounsel was noticed, the laughing ceased.
The investigating officer testified at the hearing on the motion for reconsideration that she did not recall being in the restroom with other jurors. Most of the time she used the district attorney’s restroom or the restroom in the jury room if the jury was not present. She used the public restroom once or twice during the trial. She did not recall seeing defense counsel in the restroom and denied discussing the case with jurors in the restroom or laughing with them.
Cocounsel testified that on one occasion she entered the restroom, where she saw several jurors and the investigating officer. She heard laughter, but it ceased when they saw her. She recalled telling defendant’s lead counsel and remembered that another juror was questioned regarding contact with the investigating officer. She believed this incident was discussed with the court on the record at a sidebar conference. She could not explain why none of this conversation appears on the record.
Defendant’s lead counsel testified that when he saw one juror and the investigating officer speaking in the hallway, he reported it to the trial court and a hearing was held. Counsel at first maintained that the observations of his cocounsel were put on the record, but the trial court read the record and the comments were not made. Counsel clarified that he had not brought the alleged bathroom incident to the trial court’s attention during trial.
The trial court observed that Code of Civil Procedure section 237 exists to protect the anonymity and privacy of jurors, and good cause is required to justify breaching the confidentiality provided by law to jurors. Defendant was seeking to do so based on an incident that the court did not believe took place, or it would have been brought to its attention. The court noted that it had fully investigated when the hallway incident involving improper contact between a juror and the investigating officer was called to its attention, and that situation proved to be innocuous. Because cocounsel’s statement that the bathroom incident was discussed on the record at a sidebar conference was inaccurate, the court found it questionable as to whether the event occurred. In any case, the court ruled there was no showing that the investigating officer did anything wrong. If laughter was occurring in the restroom, that fact alone fell short of misconduct justifying disclosure of juror identifying information.
The trial court returned to the issue on November 9, 2006. The court reiterated that the hallway incident was brought to its attention, and the issue was resolved on the record. There had been no other discussion of juror misconduct with the trial court. The court accepted that cocounsel thought she saw something, but there was no showing of misconduct. The request for juror information was therefore nothing more than a “fishing expedition.”
The Denial of Juror Identifying Information Was Not an Abuse of Discretion
Code of Civil Procedure sections 206 and 237 govern the release of juror information. Code of Civil Procedure section 206, subdivision (g), provides that a defendant may petition the court for personal juror identifying information for, inter alia, the purpose of developing a motion for new trial. (See Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087.) Code of Civil Procedure section 237, subdivision (b) requires that a petition for juror identifying information be supported by a declaration that includes facts sufficient to establish good cause. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1319-1322 & fn. 8.) When the basis for disclosing juror identification is an allegation of juror misconduct, a defendant must “set[ ] forth a sufficient showing to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes (1989) 212 Cal.App.3d 541, 551-552; People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.)
A trial court’s denial of a petition to disclose juror identification information is reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 317.) To demonstrate good cause for the release of juror identification information pursuant to Code of Civil Procedure section 237, subdivision (b), a defendant must “set forth a sufficient showing to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552; accord, People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) Furthermore, the misconduct alleged must be “‘of such a character as is likely to have influenced the verdict improperly.’” (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) A petition to disclose juror identification information must be supported by more than mere speculation and may not be used as a “‘fishing expedition[ ]’ by parties hoping to uncover information to invalidate the jury’s verdict.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552.)
If the trial court finds that good cause for disclosure has been shown, it must set the matter for a hearing. If the court does not set the matter for a hearing, the court must make an express finding in the minutes either that good cause was not shown or that there was a compelling interest against disclosure. (Code Civ. Proc., § 237, subd. (b).)
In this case, we defer to the trial court’s finding that disclosure of the jurors’ identifying information was not justified. The trial court reasonably questioned whether the incident occurred in the restroom, but assumed that it did. There was no showing of misconduct by the jurors. The trial court determined that, at most, defendant had established cocounsel entered a restroom where there was laughter and jurors and the investigating officer were present. The trial court could reasonably find that this showing was insufficient to demonstrate the type of misconduct that warrants disclosure of private juror information. Given the speculative nature of the allegation, and the fact that is was never called to the attention of the trial court during trial, there is no basis to overturn the discretionary decision of the trial court, as it was well within the bounds of reason.
To the extent defendant argues the trial court erred by failing to enter the reasons for the denial of the petition in a minute order, as required by Code of Civil Procedure section 237, subdivision (b), any such failure was harmless. The trial court’s reasoning was fully set forth in the reporter’s transcript, and the absence of a minute order is at most a procedural error not warranting reversal. (Cal. Const., art. VI, § 13.)
VI
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR NEW TRIAL
Defendant argues the trial court erred in denying his motion for new trial. Defendant argues the evidence was legally insufficient to establish his identity as the assailant, and that the gang evidence introduced in support of the special gang enhancements found not true prejudiced defendant under the reasoning of People v. Albarran (2007) 149 Cal.App.4th 214.
The jury rejected allegations that the charged offense was committed for the benefit of a criminal street gang. For this reason, we have not set forth the contents of the gang expert’s testimony in this opinion.
The standard of review of denial of a motion for new trial has been stated to be an abuse of discretion in some situations (see People v. Williams (1988) 45 Cal.3d 1268, 1318; People v. Carter (2005) 36 Cal.4th 1114, 1210) and de novo in others (People v. Nesler (1997) 16 Cal.4th 561, 582 (opn. of George, C. J.); People v. Albarran, supra, 149 Cal.App.4th at pp. 224-225 & fn. 7). We need not resolve the question of which standard of review is applicable in this appeal, because the result is the same under either standard. If our review is de novo, the argument is without merit, as the record easily contains the requisite substantial evidence to support the judgment. Having found the evidence sufficient as a matter of law, it follows that if review is discretionary, the trial court did not abuse that discretion in denying a new trial based on insufficiency of the evidence. As to the claim that a new trial should have been granted based upon improper admission of gang evidence, we find the issue forfeited as it was never presented to the trial court.
We begin by examining the issue of the sufficiency of the evidence of identification of defendant as the person who shot Williams and Cox. In doing so, “we must ‘review the entire record, and drawing all reasonable inferences in favor of [the judgment], . . . determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 357.)
Defendant, who had a confrontation with Williams within weeks of the charged shooting, was identified by both Williams and Grey. Defendant threatened his nephews for telling the police about his gun, demonstrating his consciousness of guilt. Defendant joked with his girlfriend about the bullet hole in his jacket, in a case in which Williams said the shots were fired through the jacket. The alibi defense was inconclusive, as the videotape was conceded by defendant to be difficult to discern. The witnesses who identified defendant on the videotape were, in the words of the trial court, “horrible” and their testimony was “unbelievable.” There is simply no basis, on this record, to overturn the jury’s verdict under the de novo standard of review. As a consequence, there is no basis to overturn the denial of a new trial if review is based on the abuse of discretion standard.
Defendant’s further argument that the introduction of gang evidence against him was so prejudicial as to warrant a new trial under the reasoning in People v. Albarran, supra, 149 Cal.App.4th at pages 225-232 was not raised in the trial court, and we will not consider it for the first time on appeal. (People v. Richardson (1950) 95 Cal.App.2d 703, 706 [claimed error not raised at trial or in motion for new trial will not be considered on appeal].) In any event, Albarran is clearly distinguishable from the instant case. In Albarran, the court found that introduction of testimony from a gang expert was prejudicial error warranting a new trial because there was no evidence that gang membership was relevant to the defendant’s motive and intent. Unlike the situation in Albarran, the record in this case supported the inference that defendant’s offenses were for the benefit of a criminal street gang, and expert testimony on that subject was properly admitted. The nonprejudicial nature of the gang evidence in this case is demonstrated by the jury’s finding that the gang allegations were not true. Albarran provides no support for defendant’s claim that he was entitled to a new trial.
VII
DEFENDANT IS NOT ENTITLED TO REVERSAL BASED UPON CUMULATIVE ERROR
Defendant’s final argument is that the judgment should be reversed due to cumulative error. However, we have examined each of defendant’s claims on appeal and have found them to be without merit. Having found no error, there is no basis for reversal based on cumulative error. (People v. Raley (1992) 2 Cal.4th 870, 921.)
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.